author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lionel Morris, Defendant-Appellant.
    (No. 72-24;
    Fifth District
    December 11, 1974.

      Robert E. Farrell, of State Appellate Defenders Office, of Mt. Vernon, for Appellant.
    Howard Hood, State’s Attorney, of Murphysboro (Ralph J. Mendelsohn, of Illinois Model State’s Attorneys Support Unit, of counsel), for the People.
   PER CURIAM:

A true bill of indictment was returned by the grand jury charging defendant with murder. The State moved to dismiss the indictment and made a motion to file an amended information reducing the alleged offense of murder to the charge of voluntary manslaughter. The motion was allowed, and the defendant pleaded guilty to manslaughter. The court accepted the plea and sentenced the defendant to not less than 5 nor more than 9 years in the penitentiary. The sentence was in accordance with a plea agreement negotiated between the defendant and the State. From this conviction and sentence the defendant appeals.

The issues on appeal involve an interpretation of Supreme Court Rule 402 (Ill. Rev. Stat, ch. 110A, par. 402) regarding pleas of guilty. The specific issues arising under Supreme Court Rule 402 are:

1. Did the trial court as required by Rule 402(a)(4) determine that the defendant understood that if he pleaded guilty he waived his right to trial by jury?

2. Did the trial court as required by Rule 402(b) determine prior to accepting defendant’s guilty plea that his plea was voluntary?

3. Did the trial court as required by Rule 402(c) determine that there was a factual basis for the plea prior to entering a final judgment on the plea?

Any discussion of the requirements of Rule 402 must be prefaced with the acknowledgment that the Rule states that there must be “substantial compliance” with its provisions, not literal compliance. This means that in each case the court must examine the particular situation to determine if in its opinion there has been substantial compliance. In People v. Garcia, 8 Ill.App.3d 542, 289 N.E.2d 637, the court stated what we believe to be the proper approach to the application of Rule 402, namely whether there has been such compliance with the rule that its beneficial effect will be achieved.

The defendant first contends that the trial court did not determine that he understood that by pleading guilty he was waiving his right to a jury trial. An understanding waiver is required by Rule 402(a)(4). An examination of the record reveals that the trial court did determine that the defendant understood both his right to trial by jury and that by pleading guilty he would waive that right. The trial court told the defendant of his right to have a trial by jury. The defendant replied that he understood that right. The actual waiver of trial by jury was made by the defendant signing a written form with the waiver clearly stated and also designated in the heading of the form. The defendant was asked if he had read the form and if he understood it. He responded affirmatively to both questions. The record shows, therefore, that the written form which was phrased in clear and simple language was read and understood by the defendant prior to signing and submitting it to the court. Furthermore, the trial court established that the defendant had a full and complete opportunity to discuss all of his rights with his attorney.

The cases cited by the defendant are not persuasive. In People v. Rambo, 123 Ill.App.2d 299, 260 N.E.2d 119, the trial court did not ask the defendant if he had read and understood the written waiver he had signed. In People v. Roberts, 5 Ill.App.3d 840, 284 N.E.2d 298, the court had to infer from the record whether or not an indictment had been effectively waived. In the instant case no such inference was necessary.

The defendant next contends that the trial court failed to comply with Rule 402(b) which requires that before acceptance of a guilty plea the court must determine that the plea is voluntary. Specifically the defendant alleges that the trial court did not determine whether any force or threats or promises, apart from the plea agreement, were used to obtain the plea. In People v. Hendrickson, 11 Ill.App.3d 219, the court held that failure to inquire as to force or threats or any promises is error. In the instant case we would point out that the written plea and jury waiver form which the defendant signed included a clear and concise statement that no threats or promises had been made by anyone to cause him to enter his plea. The defendant acknowledged that he read and understood the instrument. We believe that this was substantial compliance with Rule 402(b). We find no words of art in this rule. It states that the court “# * * shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.” While an obvious method of making this determination would be to ask the defendant directly if there were any force or threats or promises apart from a plea agreement, the language of the section does not so require. It says that the court “shall determine.” In the instant case the form signed by the defendant states that the plea was voluntary, a declaration which is inconsistent with the use of force. The plea was accepted only after submission of the written form followed by a determination of whether the defendant had read it and understood it and wished the court to accept it. Thus we hold that the record does show that a determination regarding force, threats, or promises was made.

Next the defendant contends that the trial court failed to ascertain whether there was a factual basis for the guilty plea as required by Rule 402(c). Defendant relies on this court’s opinion in People v. Dye, 7 Ill.App.3d 805, 806, 288 N.E.2d 537, wherein the defendant was asked <“* * * ^0 you still say you are guilty as charged in the indictment? * # The court held that defendant’s affirmative answer did not establish that a factual basis existed. In the instant case, however, the trial court here twice addressed the defendant and stated clearly the essential elements and requisite intent constituting the offense. Under these circumstances, we find that defendant’s voluntary plea of guilty was an admission of the acts charged and established sufficient facts upon which the court could determine that a factual basis existed.

Both parties agree that the 5- to 9-year sentence imposed does not comport with the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1001 — 1—1 et seq.), particularly with that portion which provides that for a Class 2 felony the minimum sentence shall be no more than one-third of the maximum. We therefore reduce the minimum to time served, and the maximum sentence shall remain at 9 years.

Affirmed as modified.


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lacarttle Jones, Defendant-Appellant.
    (No. 73-95;
    Fifth District
    December 18, 1974.

      Robert Farrell, of Mt. Vernon, and Lynn Sara Frackman, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from a denial of post-conviction relief after an evidentiary hearing in the Circuit Court of St. Clair County. In 1967 petitioner was convicted of murder and armed robbery and he was sentenced to the penitentiary for terms of 99 to 100 years and 50 to 75 years respectively, said sentences to run concurrently. On direct appeal this court affirmed his convictions in People v. Jones, 125 Ill.App.2d 168. Petitioner contends here that he was denied his constitutional right to be effectively present at his trial because medication he was then taking for relief of pain caused him to doze off intermittently during the proceedings. In addition, he attributes error to the judge in his post-conviction proceeding for failure to recuse himself in that he may have been a material witness on the issue presénted by the petition.

The allegation in the petition giving rise to the present issue states: •

“That as a result of bullet wounds suffered at the time of his arrest and subsequent medical treatment, the petitioner was administered drugs to alleviate his pain and was suffering-the affects [sic] of these drugs throughout the time of trial so that he was unable fully to understand the proceedings against him.”

This allegation was not contained in petitioner’s original pro se petition but was added later in an amended petition filed after appointment of counsel.

Petitioner was the only witness at the hearing. He stated that he was arrested on July 30, 1966, and that he was hospitalized for 1 week for treatment of gun shot wounds in his chest and side. Thereafter, until his trial approximately 8 months later on March 27, 1967, he took two pills a day for relief of pain. Though he did not know what they were, he believed they were depressants because they made him sleepy. The pills were supplied by the nurse at the jail on defendant’s request. At his trial he was still taking the pills and, he said, he would find himself dropping off into a semi-conscious sleep unable to hear or remember what the witnesses had said. He did not know whether these periods would last a minute or a half an hour. Specifically, he remembered that he had dozed off during the testimony of the coroner and the ballistics expert. He considered himself able to discuss matters with his attorney and stated that he did not fall asleep during his own testimony and was able to give his version of the events surrounding the shooting. On cross-examination he admitted that he did not at any time during the 5-day trial complain to either the judge or his attorney that he was not hearing all of the evidence because, he said, he believed his attorney had sufficient legal expertise to defend him.

Petitioner here contends that his alleged intermittent dozing during the course of his trial caused him to miss portions of the testimony and made it impossible for him to discuss this evidence with his attorney and that, therefore, he was denied his constitutional right to be personally present at all times during his trial. About the best we can say of this argument is that it is a novel one. Actually, we believe it is misstated. It is not his presence, physically or mentally, that is in question. Rather it is whether, while under the alleged medication, defendant was competent, l.e., whether he could hear, understand and cooperate with his counsel in his defense as constitutionally required.

It is well established that in a post-conviction proceeding the burden is on the defendant to set forth clearly in what respects his constitutional rights were violated and he must support those allegations with affidavits, records or other evidence which establish a violation of those rights, and mere allegations of conclusions to that effect are not sufficient even to require an evidentiary hearing. (People v. Farnsley, 53 Ill.2d 537; People v. Ashley, 34 Ill.2d 402.) In People v. Andrus, 41 Ill.2d 543, the defendant claimed that at the time he pleaded guilty he had been deprived of a certain relaxant drug which he had taken for years to alleviate a' mental condition, and that the headaches resulting from such deprivation made it impossible for him to understand the proceedings. The court found that the only issue raised by such allegations in a post-conviction proceeding is whether any facts were established which, if presented to the trial court at the time of his plea, would have raised a bona fide doubt as to his sanity, which in turn would have required a hearing as to his competency. It was concluded that such self-serving and unsupported statements, even if they had been brought to the attention of the trial court, would not have been sufficient to create a bona fide doubt as to competency and the petition was properly dismissed. In People v. Pridgen, 37 Ill.2d 295, the same result was reached in a case involving a claim that defendant was suffering from amnesia at the time of trial and was unable to cooperate with counsel. In People v. Brown, 41 Ill.2d 230, it was held that a defendant was not entitled to an evidentiary hearing on his post-conviction petition based merely on allegations that he was under the influence of drugs, or intoxicated at the time he waived his rights and entered his plea of guilty, where there was nothing in the record to suggest that the court was placed on notice that defendant was under any disability, and the defendant did not suggest that any facts were brought to the attention of the court which would have required a competency hearing. See also People v. Rendleman, 11 Ill.App.3d 214 (involving a claim that défendant’s capacity to assist counsel was impaired prior to trial because of medicines-and drugs prescribed and administered to him by a physician); People v. Durham, 10 Ill.App.3d 911 (involving claim of drugged condition due to püls taken for hemorrhoid problem); People v. Lego, 32 Ill.2d 76 (involving claim of blackout spells).

After reviewing the trial court record, and applying the reasoning in the above cases, we find petitioner’s claim of a denial of his constitutional rights is without merit. In effect, it is a self-serving claim of mental impairment, self-imposed, conclusionary, and without- any- support - in the record or by any other evidence. By defendant’s own admission he did not caH his alleged condition to the attention of the court or his counsel. Nor does the trial record contain any indication at any time during the 5 days that it continued that his condition was other than normal. He consulted with counsel and testified extensively in his own behalf, and, though he mentioned his pain at the time of the shooting, he made no reference to suffering from any pain at his trial. We conclude that the allegations contained in his petition were unsupported by any evidence, and even if they had been raised at his trial, they would have been insufficient to raise a bona fide doubt of his mental condition, his "mental presence,” or his competence to understand and assist counsel in . his defense. Therefore, the dismissal of his petition was proper. With such a finding we consider it unnecessary to consider the veiled contention that sleepiness induced by medication constitutes a form of insanity within the meaning of the law.

Next defendant contends the judge should have excused himself sua sponte from hearing the post-conviction proceeding because he also presided at defendant’s trial and should have recognized, based on the allegations made, that he could be a material witness with knowledge outside the record of their truth or falsity. This precise question has been considered previously and held without merit in People v. Peaslee, 7 Ill.App.3d 312 (abstract opinion). There, as here, the defendant was fully aware of the fact that it was the same judge sitting but, nonetheless,, he did not move for a substitution of judges as was his right, nor did he voice any objection or make any motion to seek the judge’s disqualification, nor did he at any time during the post-conviction hearing request that the trial judge appear as a witness. Under such circumstances, and after considering some of the cases cited by petitioner here, the court held that the point was waived and could not be presented for the first time on appeal. We agree. In addition, regardless of the position of the judge and whatever knowledge he may have had from the original trial, and however that knowledge may have affected his decision to dismiss the petition, it is abundantly clear that petitioner’s unsupported, self-serving allegations were insufficient to warrant granting his petition.

. The judgment of the Circuit Court of St. Clair County if affirmed.

Affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE CARTER

text:
    Ivan Carter, Plaintiff-Appellee, v. The Kaskaskia Community Action Agency, Defendant-Appellant.
    (No. 74-112;

    Fifth District
    December 20, 1974.

      Frank C. Mansfield, of Belleville, for appellant.
    Martin J. Corbell, of Vandalia, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Marion County entered on January 24, 1974, after a nonjury trial. The court ordered the defendant to pay the plaintiff the sum of $3760.

The plaintiff brought an action against the defendant, a not-for-profit corporation engaged in the performance of social and human services under programs of the Federal government, based on an alleged violation of a contract of employment. The defendant denied the factual occurrences of any violation and further argued that there is no common law right of the plaintiff to employment and that the employment, being for an indefinite term, was terminable at will, and therefore the plaintiff had no right to action on being discharged.

The plaintiff did not maintain that he was not discharged for cause but rather premised his case on the theory that the defendant had adopted a “Personnel Policy Manual,” which thereby became a contract binding on both parties and that the procedures set forth therein were not followed in effecting the complained of discharge.

The defendant argued that this was not a contract and in the alternative that, even if it were, there had been substantial compliance therewith, such compliance satisfying all reasonable requirements.

The issue presented for review is whether or not the plaintiff was lawfully discharged as an employee of the defendant. We hold that he was illegally discharged and affirm the ruling of the trial court.

The defendant, Kaskaskia Community Action Agency, is a not-for-profit corporation, whose purpose is to improve the lot of the poor by attempting to create job opportunities and develop abilities to take advantage of such opportunities. This is done with the guidance of the Department of Labor and, for the most part, with funds allotted by the U.S. Government. Ivan Carter, the plaintiff, and one Mary Ann Smith, were employed by the defendant agency as “Manpower Director” and “Assistant Manpower Director,” respectively, the former having started work in 1967 and Mary Smith in 1968. The employment of the plaintiff by the defendant was terminated on February 14, 1972, and that of Mary Smith on May 22, 1972.

There were no written contracts of employment and no evidence of any oral contracts with reference to tenure. During July of 1971 the executive director of the defendant agency compiled a book of procedures which was entitled “Personnel Policy Manual” (hereinafter referred to as Manual) and reviewed it with the employees, who accepted it. Later it was approved by the board of directors of the agency. Included in the Manual, among many other personnel-type items, are procedures for grievances, disciplinary action including dismissal, and review thereof. The review of a dismissal consisted of the possibility of appeal to the personnel committee and then to the board of directors by an employee who thought his dismissal was not justified. The plaintiff and Mary Smith presented their cases to both of these reviewing bodies. The plaintiff presented his case, to the personnel committee and was invited to a meeting of the board of directors, but there was a fact issue decided by the trial court as to whether or not he left the meeting before his case was considered.

The trial court in its decision stated:

“The court cannot substitute its opinion over that of a Board of Directors unless there is a clear and arbitrary unlawful act.”

On this basis he determined that there was sufficient compliance with the rules in the case of Mary Smith and that her action should fail. On the other hand, in the case of the plaintiff, the trial court determined “the action of the Board at the meeting of February 14, 1972, was void, illegal and of no force or effect.”

It must be decided whether or not the procedures for dismissal set forth in the Manual after being adopted by the board of directors became a contract binding on both parties. The plaintiffs cause of action is based upon rights supposedly granted by the adoption of the Manual. The plaintiff argues that this Manual became part of the employment contract or, in the alternative, that by its representations the defendant is estopped from denying the plaintiff the rights contained in the policy. Unless the plaintiff acquired some right to a grievance hearing, it would seem that he could be discharged at the will of the employer.

As a proposition of law, the contract must be enforceable by both parties bound to it: i.e., there must be mutuality of obligation. To determine whether there was mutuality of obligation, it is necessary to examine the Manual itself. This document contains provisions concerning both the employer and the employees. It provides that professional employees will be expected to give 30 days’ notice before resigning or lose their right to vacation pay. Certain paragraphs provide a method whereby employees would be given grievances procedures; thus, it would appear that there was mutuality of obligation. There seems to be no question that, as far as the capability of the parties to contract is concerned, the Board of Directors adopted the policy contained in the Manual.

The question then becomes whether the plaintiff assented to the proposed modification. It has been determined that, when the term of employment is at the will of the parties, continuing to work not only constitutes assent but also consideration for any modification of the original contract. (Gishen v. Dura Corporation (Mass. 1972), 285 N.E.2d 117; Robinson v. Phillips Petroleum Co. (1936), 175 Okla. 640, 54 P.2d 322; Trainer v. Laird (1936), 320 Pa. 414, 183 A. 40.) Thus, it appears that the plaintiff not only assented to a modification of his contract, but he provided sufficient consideration for that modification, thus creating mutuality of obligation.

Harold Thomas, the former executive director of the defendant, was called under section 60 of the Civil Practice Act and also as a witness for the defendant. He testified that he had prepared the Manual and that the executive director was responsible for all of the staff, subject to consultation with the personnel committee. The board of directors of the defendant agency was responsible for the employment and dismissal of the executive director. Thomas also stated that he turned the plaintiff’s case over to the personnel committee, which recommended to the board that plaintiff’s employment be terminated. On cross-examination, Thomas testified that grievance procedures were required before a “permanent” employee could be suspended, demoted or dismissed. Thus it can be determined that the Manual became part of the employment contract.

Having established that the Manual was in full force and effect, was the meeting of the board of directors of the defendant agency on February 14, 1972, so constituted so that the plaintiff had a hearing as requested? According to the plaintiff’s testimony, which was contradicted, he was present at the appointed time for the meeting, waited and, when a quorum was not present, departed. Other witnesses testified that plaintiff departed after two representatives were appointed by the executive committee to the board so that all four counties in the organization would be represented at the board meeting, as required by the bylaws. We must examine the bylaws of the defendant corporation to determine whether or not the meeting of February 14, 1972, was lawfully conducted so that it could take the necessary action concerning the charges against the plaintiff.

The bylaws under which the defendant had been operating were adopted in 1969 and provided in article III, section 3:

“Fifty (50$) per cent of the directors shall constitute a quorum for any Board meeting. To constitute a quorum, at least one director from each of the four counties must be present. A majority * ”

The executive committee of the defendant met on January 18, 1972, and decided to put into effect some revised bylaws, whereby all four counties would not have to be present for a quorum. However, the board of directors of the defendant agency at its next meeting would have to adopt the suggested revision. The next regular Board meeting was held bn February 14, 1972. The minutes of that meeting reflect that under the bylaws then in existence, there was no quorum, but it is stated that, “OEO Chicago Legal Authorities authorized the Board of Directors to call an Executive Committee meeting to place two representatives on the Board from Washington County.” After this action, it was declared that a quorum was present. Later on during this meeting, the revised bylaws were then formally adopted pertaining to the quorum provision.

Under the bylaws in existence at the time of the February 14, 1972, meeting, there was no provision to fill a vacancy on the board of directors, and article III, section 3, pertaining to a quorum was still in effect and controlling: Section 1 of article VIII of these same bylaws states that the bylaws may be changed if a majority of votes east at any meeting held for this purpose vote for the change “provided that at least ten days written notice, accompanied by the proposed changes is sent to each director.”

There is nothing in the record to demonstrate that the bylaws in effect at the start of the February 14, 1972, meeting were legally revised so that the executive committee were empowered to appoint two representatives from Washington County to the board of directors so as. to constitute a quorum. Under the 1969 bylaws there existed no provision for filling a vacancy on the board of directors, and consequently, any action taken at the meeting could be subject to attack.

Defendant agency in its brief refers repeatedly to plaintiff’s exhibit 14 for support in the legality of the meeting, on February 14, 1972. Exhibit 14 was the bylaws adopted in 1969 and in effect at the time of the meeting in question. The references that defendant cites are found in plaintiff’s exhibit 13, which are the bylaws adopted during the meeting of February 14, 1972, and naturally not controlling at the time the February 14 meeting was convened.

Article XXI of the Manual sets out in detail the grievance procedures to be followed in the dismissal, suspension, or demotion of an employee of the defendant. Steps I, II and III were complied with in the plaintiff’s case; however, step IV indicates that either party may make a written request to the board of directors for a hearing. The board shall then conduct a hearing with both parties present and have all written materials and documents pertaining to the grievance in its possession. Plaintiff filed his written request with the board for a hearing. By way of argument, even if a quorum had been present at the meeting, the action of tire board in considering the plaintiff’s dismissal was hardly in the spirit of what was intended in the Manual for deliberating an employee’s case: The official minutes of the meeting point out that the following occurred:

“Richard. Seidel made a motion that the full Board accept the recommendation of the Personnel Committee to release Ivan Carter as Manpower Director. Leroy Leith seconded the motion. A roll call was taken and the actions were:
19 Yes 1 No 1 Passed”

There was no showing that any effort was made to call the plaintiff or ascertain if he were present. There was some testimony that at the time of -the hearing, plaintiff departed when it was announced that a quorum was not present. This was contradicted. Testimony was presented on behalf of the defendant agency that the plaintiff walked out of the meeting after a quorum was announced. However, the authenticated minutes of the meeting are silent as to the plaintiff’s presence or absence when the action was taken. Barbara Perkins, a former secretary for the defendant agency, who prepared and typed the minutes of the February 14, 1972, meeting, testified on cross-examination that “there never was any hearing on Mr. Carter [plaintiff].” However, the court sitting without a jury was the trier of this question of fact and found in favor of the plaintiff.

We, therefore, find that the defendant agency was under a duty as provided in the Manual to grant the plaintiff a lawfully-constituted grievance hearing before he could be dismissed. As this was not accomplished, the judgment of the trial court of Marion County in favor of the plaintiff is affirmed.

Judgment affirmed.

CREBS and EBERSPACHER, JJ., concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Slaton, Defendant-Appellant.
    (No. 74-183;
    Fifth District
    December 24, 1974
    Stephen P. Hurley and John H. Reid, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield, and Walter E. Moehle, State’s Attorney, of Nashville (James B. Zagel and Roger L. Longtin, Assistant Attorneys General, of counsel), for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant was convicted of disorderly conduct in violation of section 26 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat., ch. 38, par. 26 — 1(a)(1)), before the circuit court of Madison County and fined $25 plus $25 costs with a $5 credit for 1 day served in jail. Defendant contends that he was not proved guilty of violating the statute beyond á reasonable doubt. The statute reads in pertinent part:

“(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace; * *

Although, under most circumstances, the statute probably does not require that a breach of the peace actually occur as a result of defendant’s conduct, the relationship between the alleged conduct and the public order must be clearly shown. The reasons for this aré stated in the statute’s Committee Comments: The statute is broad by nature because an “[ajctivity of this sort is so varied and contingent upon "surrounding circumstances as to almost defy definition.” (Ill. Ann. Stat., ch. 38, §26 — 1, at 596 (Smith-Hurd 1970).) Therefore, the statute cannot clearly describe the conduct prohibited and this requires an arresting police officer to exercise somewhat wide discretion in determining the unreasonableness of the conduct. Further, the Committee Comments state:

“The type of conduct alone is not determinative, but rather culpability is equally dependent upon the surrounding circumstances.”
(Ill. Ann. Stat, ch. 38, §26 — 1, at 596 (Smith-Hurd 1970).)

The Comments conclude that the emphasis must be on the unreasonableness of the conduct and “its tendency to disturb.” (Ill. Ann. Stat, ch. 38, §26 — 1, at 596 (Smith-Hurd 1970).) Thus, the relationship between the alleged conduct and the public order, or the right of others not to be molested or harassed, is crucial in determining the necessity of criminal sanction. In City of Chicago v. Perez, 45 Ill.2d 258, 260, 259 N.E.2d 4, the court held that defendants’ refusal to end the “sit-in” protest demonstration in a public welfare office at closing time was not disorderly conduct because “it did not cause any public disorder or breach of peace.” Citing Perez, the court in City of Chicago v. Hopson, 131 Ill.App.2d 591, 266 N.E.2d 363, held that a remark (probably profane) directed by the defendant to a police officer on a public street did not tend to disturb the public’s order.

Where mere words constitute the offending conduct, the United States Supreme Court has placed an additional requirement on this relationship, that is, the words must be “fighting words.” Lewis v. City of New Orleans, 415 U.S. 130, 39 L.Ed.2d 214, 94 S.Ct. 970. The court held that words, although “vulgar or offensive” (415 U.S. 130, 134, 39 L.Ed.2d 214, 219, 94 S.Ct. 970, 973), cannot be prohibited unless they “ ‘by their very utterance inflict’ injury or tend to incite an immediate breach of the peace.’ ” 415 U.S. 130, 133, 39 L.Ed.2d 214, 219, 94 S.Ct. 970, 972.

In the present case, the relationship between the spoken words and the public order is very tenuous. The record indicates that the words spoken under these circumstances were not of the nature to evoke a violent response, especially from a police officer presumably trained to preserve the public order. (Oratowski v. Civil Service Com., 3 Ill.App.2d 551, 561, 123 N.E.2d 146.) There the court held that “[a]n officer of the law must exercise the greatest degree of restraint in dealing with the public. He must not conceive that every threatening or insulting word, gesture, or motion amounts to disorderly conduct.” Here, the defendant; while working under the supervision of a police officer, felt he was being treated unfairly and stated, according to the officer, that “the son of. a bitches are picking on me and I have done enough, work for today and I’m not going to do any more work and you can go * * * yourself and everybody else on the property and * *■ '* [I am] # # * getting sick and tired of it.” This complaint was made to the officer outside the immediate presence of others. Defendant displayed no physical conduct threatening a breach of the peace, and the officer testified that he was not provoked to such a breach. Defendant’s statements indicate that he did not expect violence but expected to be, and' in fact was, returned to his cell. There is not one iota of proof that the words uttered by defendant inflicted injury or intended to invite an immediate breach of the peace.

Because we find that the defendant was improperly convicted under the statute, we need not discuss defendant’s contention that the statute is unconstitutional.

Thus we hold that the state did not prove the elements of disorderly conduct as required by the statute, and we reverse. ■'

Judgment reversed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr.:.JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Stufflebean, Defendant-Appellant.
    (No. 74-4;
    Fifth District
    December 24, 1974.
    Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defenders Office, for appellant.
    Nicholas ■ G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Assistant State’s Attorney, of counsel), for the People.
   Mr.:.JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Thomas Edward Stufflebean, from a judgment of conviction entered, on a jury verdict of guilty, by the circuit corut of Madison County for the offense of robbery and the imposition of a sentence of not less than 2 years nor more than 6 years in the penitentiary.

In the instant appeal the defendant does not contend that he .was not proven guilty beyond a reasonable doubt, rather he contends that it “cannot be said beyond a reasonable doubt that the jury’s knowledge of the defendant’s prior conviction did not contribute to its verdict.” Nevertheless, a brief summary of the evidence presented at the defendant’s trial is necessary before evaluation of the defendant’s contention that the trial court erred in admitting evidence of the defendant’s 1967 Missouri conviction for theft from a person and in allowing reference to it by the State in closing argument.

. A- review of the uncontroverted facts reveals that the defendant requested the bartender at Hook’s Tavern to call for a Yellow Cab around 11 P.M. on May 17, 1973; John Fausz was dispatched to pick up the de^ fendarit; after a number of interveriing stops the cab arrived at 1206 Grand in Madison; after Fausz and defendant entered the building at that address, through the basement, the defendant tied and gagged Fausz; the defendant then drove away in the cab Fausz had been operating; Mr. Fausz untied himself and notified the police; and the defendant was arrested near the County Road and McKinley Bridge where he had driven to meet another, man who had driven to that location in a Ford Fáirlane.

The defendant attempted to explain his conduct by testifying that he knew Fausz, by his nickname “Fuzzy,” and that the two of them used to hang around together; he and Fausz met on the afternoon of May 17, 1973, and Fausz proposed a “deal” to the defendant; under this “deal” the defendant was to caff Fausz that night and have Fausz pick him up in, Fausz’s. cab, they were to go to 1206 Grand where the defendant wpuld tie up Fausz and take Fausz’s cab, Fausz would get the insurance money for the cab and pay the defendant $460 the following morning; and the events of the evening of May 17, 1973, were the culmination of;this “deal.”' ' ' ' '

Fausz denied that he knew the defendánt arid further deified that he had- prpp„osed .or agreed :to the.plan.outlined by the defendant. Edward Goclan, a Madison police officer, testified that when he requested the defendant to produce some identification the defendant said his name was Fausz and pulled out a' Wallet with identification in the name of Fausz. The defendant was searched and a wallet with the name of Thomas Stufflebean was found. Officer Goclan testified that $15 or $16 in change was found in one of the defendant’s pockets. He also testified that the police report was in error in that it did not reflect that Fausz’s wallet was taken from the defendant at the time of the arrest. Charles Mize, a Venice police officer, testified that he had been called to assist in the arrest. Officer Mize stated that he patted down the defendant and felt two wallets in the defendant’s back pockets. He also stated that the defendant pulled a wallet out of his pocket and gave it to Officer Goclan, whereupon Officer Goclan asked the defendant “Are you Mr. Fausz?” The defendant denied that he was in possession of Fausz’s wallet and testified that the police added a wallet similar to that identified as Fausz’s wallet to what the defendant removed from his pockets at the police station. The defendant also denied that he had identified himself as Fausz at the time of his apprehension.

After the defendant’s testimony the State’s Attorney presented to the court in chambers “a verified and authenticated copy” of two prior convictions from Missouri, one for theft from the person, the other for assault with intent to kill with malice. The trial court allowed the theft conviction to be introduced, but refused to allow the assault conviction. The defendant objected on the grounds that the theft conviction was “ancient” and that it would only serve to inflame the jury and prejudice the defendant. A cautionary instruction was given admonishing the jury to consider the defendant’s prior conviction “only insofar as it may affect his credibility as a witness.”

The defense counsel, in closing argument stated:

“* 6 * Now Mr. Troné [State’s Attorney] has given you, ladies and gentlemen of the jury, a look at this man’s unfortunate past and his trauma of 1967, a conviction for purse snatching, to which Mr. Stufflebean pleaded guilty.
MR. TRONE: Objection, Your Honor. I don’t think that was the record—
MR. WEBER: That’s what it was. It was theft from a person, but it was purse snatching. Now let me ask you a question, ladies and gentlemen of the jury, what relevance other than titillating, other than trying to inflame your passion, other than trying to prejudice you against this man, does a ’67 to ’73 — does a seven or eight year old purse snatching record does have in this case? What does it have? Well, it has all the requirements of a true confession sensational attempt to drag you right over the issues of this case. That’s what it’s brought in for, and I submit that’s the only reason it’s all brought in for, because if — credibility—although it’s not a perjury conviction — a similar type of taking from people that Mr. Troné wants you to — why did he bring that it? . * ° *”

Subsequently, the State, in closing argument, stated:

“* ■ * * But he [defendant] isn’t the smartest guy in the world, in the first place. The smart guys don’t get involved in this stupid stuff. And particular — after having been mixed up once before.
MR. WEBER: I object.
MR. TRONE: Purse snatching. If you’ll recall, the Court advised you that it was Theft from the person, and the sentence for that theft from the person was a two year sentence. Does that sound like simple purse snatching?
MR. WEBER: I have made an objection.to Mr. Trone’s characterization of him having been caught once before. I think it’s inflammatory and being precisely the kind of issue that he’s trotting out to obscure the facts in this case. I’d like a ruling.on that point.
THE COURT: As to it being inflammatory?
MR. WEBER: Sure.
MR. TRONE: Your Honor, he brought up himself—
MR. WEBER: And being improper argument.
THE COURT: Overruled.
MR. TRONE: He brought — there was nothing said in Court or any reference to purse snatching, nor was there any testimony to that. That was theft of the person, which there was a two year sentence given. * * *”

Initially, we must determine whether the defendant’s prior conviction for theft was properly admitted. The guidelines for-the admission of previous convictions were established in the landmark case of People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695. Therein our supreme court held proof of prior convictions for purposes of impeachment was to be governed by Rule 609 adopted by the Committe on Rules of Practice and Procedure of the Judicial Conference of the United States. Under the general rule, the credibility of a witness may be impeached by evidence of a prior conviction, except a plea of nolo contendere, if such crime, (1) was punishable by death or imprisonment in excess of one year, or (2) involved dishonesty or a false statement regardless of the punishment, unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice. Rule 609 also provides that evidence of conviction is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date.

Since the defendant’s previous conviction for theft from a person was punishable by a sentence of 2 years, involved dishonesty, and transpired within the requisite 10-year period, the only issue before us is whether its probative value was “substantially outweighed by the danger of unfair prejudice.” According to the Advisory Committee’s comments to Rule 609, set forth at length in Montgomery, the trial court is given “room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case.” 47 Ill.2d 510, 517, 268 N.E.2d 695, 699.

Our review of the record in the instant case reveals that the trial court did not abuse its discretion. Evaluation of the nature of the prior conviction, the proximity of' the prior conviction, the subsequent career of the defendant, and the similarity between the previous, offense and the one charged, leads us to the conclusion that the ruling of the trial court concerning the admission of the defendant’s prior conviction satisfies the standards set forth in Montgomery and is not “substantially outweighed by the danger of unfair prejudice.”

We also find no merit in the defendant’s argument that references to such conviction in the State’s closing argument constituted reversible error. The State is permitted, in closing argument, to comment upon the credibility of the defendant as a witness. (People v. Hurley, 10 Ill.App.3d 74, 77, 293 N.E.2d 341, 343.) A previous conviction is within the scope of the State’s commentary on the credibility of the witness, provided evidence of such conviction has been properly admitted. (See People v. Jones, 125 Ill.App.2d 168, 260 N.E.2d 58.) When the defense counsel attempts to minimize the effect of the defendant’s prior conviction in his closing argument, the State may, of course, respond directly to such remarks provided it does not transcend the scope of the comments, advanced by the defense counsel. In any event, in view of the overwhelming evidence of the defendant’s guilt, we .cannot say that the State’s closing argument, much of which was in direct response to the closing argument .of the defense counsel,, constituted reversible error. See People v. Stahl, 26 Ill.2d 403, 186 N.E.2d 349; People v. Bellamy, 12 Ill.App.3d 576, 299 N.E.2d 585; People v. Fox, 131 Ill.App.2d 604, 264 N.E.2d 502.

Having found the defendant’s only contentions without merit, we affirm the judgment of conviction entered by the circuit court of Madison County.

Affirmed.

G. MORAN and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Danny Tobin, Petitioner-Appellant.
    (No. 73-376:
    Fifth District
    December 26, 1974.
    Robert FarreU, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appeHant.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Appellant Tobin was convicted of burglary and sentenced to a 15- to 25-year term in the penitentiary. On appeal this court affirmed the conviction but reduced his sentence to a minimum of 7 and a maximum of 20 years. People v. Tobin, 2 Ill.App.3d 538, 276 N.E.2d 828.

Thereafter, Tobin filed a post-conviction petition pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat, ch. 38, par. 122 — 1 et seq.). Tobins sole contention on appeal is that he was denied due process because the trial judge, as indicated by his statements and rulings, was prejudiced against him. Since petitioner’s evidentiary hearing was to be held before the judge before whom he was tried, petitioner filed, in conjunction with his petition, a motion to have the judge disqualified. The judge was included in the petitioner’s list of witnesses. The record does not contain any formal ruling on the motion. The judge presided at the evidentiary hearing and denied the post-conviction petition. The judge’s alleged prejudice was not argued by petitioner at the hearing.

The right to be heard before a different judge in a post-conviction proceeding is not absolute, but in certain instances a trial judge should recuse himself when it appears that he may be biased or may be a potential witness. (People v. Wilson, 37 Ill.2d 617, 230 N.E.2d 194.) Petitioner alleges that certain rulings made by the judge during trial and his remarles after the trial indicate that he was biased, denying the petitioner-due process of law. The petition contained the following allegations:

“That Petitioner was denied Due Process of Law in violation of the Illinois Constitution of 1970 (and earlier Constitution), Article I, Section 2 as well as the United States Constitution, Amendment V and Amendment XIV, Section 1, in that the Trial Court Judge — Honorable Harold O. Farmer — was prejudiced which denied Petitioner a fair trial since:
(a) Robert Rice, State’s Attorney, informed Harold Farmer in the presence of James West, U.S. Marshall, and Petitioner, that Petitioner had to be taken to Tennessee for another trial, and Harold O. Farmer remarked in words to the effect: “Well he (Danny Tobin) should never have went to trial here.’
(b) That the Public Defender objected 12 times during the trial and only 2 of the objections were sustained, whereas 10 of the objections were overruled.
(c) After sentencing Petitioner to 15 to 25 years, Honorable Harold O. Farmer informed Petitioner: 1 don’t know what effect an appeal in this case would have on the Parole Board, when you .come up for parole; that is something for.you to decide.’ ”

All of the aforesaid, allegations are completely lacking in merit. Petitioner’s factual allegations, if proved, would not have shown that the trial judge was biased against the petitioner during the trial. Then, too, assuming there is merit in one or more of the allegations, no evidence was offered.at the post-conviction hearing.to sustain any of them. The trial judge’s failure to recuse himself in the subsequent post-conviction proceedings under the circumstances of this case would at most constitute harmless error. Therefore, we conclude that the circuit court’s disposition of.the cause should not be disturbed.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Lee Rednour, Defendant-Appellant.
    (No. 74-128;
    Fifth District
    December 24, 1974.

      Stephen P. Hurley and John H. Reid, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William J. Scott, Attorney General, of Springfield, and Walter E. Moehle, State’s Attorney, of Nashville (James B. Zagel and Roger L. Longtin, Assistant Attorneys General, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Jerry Lee Rednour, from a judgment entered, on a plea of guilty, by the circuit court of Washington County for the offense of burglary and the imposition of a sentence of not less than 1 nor more than 3 years in the penitentiary.

The defendant commenced this appeal by filing a “motion for summary reversal and remand or, in the alternative, motion for vacation of sentence and remand for resentencing.” The three issues raised in defendant’s motion were: (1) whether the trial court complied with Supreme Court Rule 401(a)(3); (2) whether the trial court substantially complied with Supreme Court Rule 402(b); and (3) whether the trial court erred in failing to advise the defendant at his sentencing hearing of his right to counsel and his right to have counsel appointed if he were indigent. The State responded to defendant’s motion, arguing that the trial court did comply with Supreme Court Rule 401(a) (3) and did substantially comply with Supreme Court Rule 402(b). The State, however, did confess that the trial court erred in not advising the defendant of his right to counsel at his sentencing hearing. Subsequently, the defendant filed a “supplement to brief and argument for the defendant-appellant.” The defendant’s only additional contention was that the Sentence imposed upon him was excessive. The defendant advanced therein his .argument that a court of review, i.e., this court, may properly induce a sentence of imprisonment to probation without remanding the case to the trial court if it determines that the trial court’s denial of probation "was arbitrary. While the State, in its supplemental brief, concedes that this court has the power to reduce a sentence of imprisonment to probation, it argues that the record in the instant case does not clearly establish that probation is the only proper form of punishment and, therefore, the case should be remanded for resentencing, to allow the trial court to determine if the defendant is entitled to probation.

We will first address defendant’s contentions that the trial court did not comply with Supreme Court Rule 401(a)(3) and did not substantially comply with Supreme Court Rule 402(b). At the defendant’s arraignment the following admonitions, with respect to Supreme Court Rule 401(a)(3), were given;

“* * 5 You have the right to services of an attorney. An attorney of your choice if you choose to hire an attorney. If you show the court that you are not able to pay for the services of an attorney, you would tell the Court and the Court would be obliged to appoint an attorney for you, without charge to you. * * * » e #
At that [preliminary] hearing you are entitled to be represented by an attorney.
5 * # Do either of you gentlemen have any questions in regard to these various rights which I have attempted to explain to you?
DEFENDANT: No.
COURT: Do you feel that you understand the explanation that I have made?
MR. REDNOUR: Yes.
COURT: Have either of you contacted an attorney?
MR. REDNOUR: No.
COURT: * * * do you wish to contact an attorney? # # #
COURT: Do you, Mr. Rednour?
MR. REDNOUR: No, sir.
* * *
BY THE COURT: You indicated a little while ago you did not want to contact an attorney. Are you willing then to enter a plea ' without having an attorney present?
MR. REDNOUR: Yes, sir.
# # #
BY THE COURT: You wish to plead guilty. You understand that by pleading guilty there will be several items papers that you will be asked to sign. You will be asked to sign a waiver. When I say ‘waiver I mean a giving up. A giving up of á Preliminary Hearing.
MR. REDNOUR: Yes.
BY THE COURT: * * 0 A giving up of the services of an attorney. * * *
MR. REDNOUR: I understand.
BY THE COURT: # e ° I hand you two papers, Mr. Rednour, one is entitled Waiver of Counsel’. This would be giving up the services of an attorney. * * * I ask you to read these two papers over Mr. Rednour. Make sure you understand them. If you wish to enter a plea of guilty I will ask you to sign them together with two other papers which will be prepared. If you do not wish to plead guilty, then do not sign these papers.
MR. REDNOUR: I will sign sir.
# # #
BY THE COURT: Yes, you have the Waiver of Counsel. As you sign that, you are saying that I do not want the services of an attorney.”

The record before us includes a copy of said ‘Waiver of Counsel,” signed by the defendant. In view of the presence of this waiver and the foregoing admonitions, which preceded its signing, we find no merit in the defendant’s contention that the trial court failed to comply with Supreme Court Rule 401(a)(3).

With respect to Supreme Court Rule 402(b), the trial court admonished defendant in the following manner:

“BY THE COURT: One thing, do you feel that you are being ■ forced in any way to enter a plea of guilty?
MR. REDNOUR: The only thing here, the presentence investigation.
BY THE COURT: I am not going to ask you to sign that at all. There will be a presentence investigation.
MR. REDNOUR: Oh.
* # #
BY THE COURT: * * * Nobody has any authority to make any promises to you as to what disposition will be made except the Court.
MR. REDNOUR: Yes.
BY THE COURT: Meaning me. * * * Any statement which you may think was made by the Sheriff, State’s Attorney, the Deputy Sheriff or anybody else, that' you might interpret as being a promise of leniency or something of that nature is not binding on me at all.
MR. REDNOUR: I realize that sir.
BY THE COURT: The authority rests on my back, the monkey is on my back as to what it will be and I am the only one that can speak for me.
MR. REDNOUR: I understand.
BY THE COURT: Do you feel anyone has coerced you in any way or forced you to do what you are considering doing entering a plea of guilty?
MR. REDNOUR: No, sir.
ft ft ft
BY THE COURT: * * * You have indicated to me that no
promises of leniency have been made to either of you. And certainly the Court has not made any promise as to what disposition will be made in this matter. And as you are aware of the fact that The Court would have the authority to impose as high a number of years of service in the penitentiary as 20. Is this correct?
DEFENDANT: Yes, sir.”

The record is unclear whether the defendant, the codefendant, or both defendants answered the last inquiry. The record reveals that both defendants were before the trial court at the time of this inquiry and that the inquiry was directed to both defendants. Despite this ambiguity, we find, within these admonishments, a foundation from which the trial court could have confirmed that there was no plea agreement. Consequently, we .find that the trial court substantially complied with Supreme Court Rule 402(b), which is all that rule required. See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

The defendant next contends that the trial court erred in not advising him of his right to counsel at his sentencing hearing. As noted previously, the State concedes that the trial court erred in not specifically admonishing defendant as to his right to counsel at his sentencing hearing. We also find that the trial court so erred. We find our decision in People v. Miles, 20 Ill.App.3d 131, 312 N.E.2d 648, which we foHowed in People v. Gillen, 20 Ill.App.3d 134, 312 N.E.2d 644, dispositive of this issue and we, therefore, find it necessary to remand this case for resentencing to give the defendant an opportunity to retain counsel for representation at his sentencing hearing. If the defendant is unable to afford private counsel, we direct that counsel be appointed to represent him at his sentencing hearing.

Having thus decided, we need only consider whether we should remand this case for resentencing consistent with the foregoing discussion or, as requested by the defendant, grant probation without remand. In support of this request the defendant contends that the instant case “falls outside the scope of” People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300. Therein our supreme court held that, “our Supreme Court Rule 615 was not intended to grant a court of review the authority to reduce a penitentiary sentence to probation.” (54 Ill.2d 552, 556, 301 N.E.2d 300, 302.) The defendant argues that since the rendition of People ex rel. Ward v. Moran, “the pertinent statutory provisions relative to probation, Illinois Reviséd Statutes, 1971, Chapter 38, Section 117 — 1 et seq., have been repealed and supplanted by Illinois Revised Statutes, 1973, Chapter 38, Section 1005 — 6—1 et seq.” The substantive effect of the new statutory provisions is to make probation a sentence, a significant change from former law. (See Council Commentary, 111. Ann. Stat., ch. 38, § 1005 — 6—1, at 369 (Smith-Hurd 1973); see also Council Commentary, Ill. Ann. Stat., ch. 38, §1005 — 1—18, at 217 (Smith-Hurd 1973).) Since People ex rel. Ward v. Moran was premised on the qualitative distinction between probation and imprisonment, which has been abrogated by the recent statutory enactments, we must agree with the defendant that a court of review may reduce a sentence of imprisonment to a sentence of probation.

While we note, and the State acknowledges, that a reviewing court is no longer precluded from reducing a sentence of imprisonment to a sentence of probation, we agree with the State that this power should be used sparingly and only where, after close examination and scrutiny, it is apparent that the trial court abused its discretion in denying the defendant’s request for probation.

The record in the instant case leads us to the conclusion that the trial court improperly considered two factors when reviewing the defendant’s request for probation. First, the trial court improperly considered the public’s displeasure with the number of recent burglaries, none of which were connected to the defendant, and the public clamor for stricter sentences. Secondly, the trial court placed considerable emphasis on the defendant’s unconventional lifestyle, a lifestyle which we consider neither illegal nor immoral. We would be inclined to view the defendant’s request for probation favorably, however, since it is already necessary to remand this case for resentencing, we believe justice would best be served by allowing the trial court to review the defendant’s circumstances with the assistance of defendant’s counsel. This would not only enable the trial court to eliminate its improper considerations, but would provide a more complete record.

Accordingly, we affirm the judgment of conviction entered by the circuit court of Washington County and remand this case for a new sentencing hearing consistent with the views expressed herein.

Judgment affirmed, cause remanded for resentencing with directions.

G. MORAN and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Victor Dal Santo, Defendant-Appellant.
    (No. 74-74;
    Fifth District
    January 6, 1975.
    Robert E. Farrell, of Mt. Vernon, and Martin Carlson, of Chicago, both of State AppeUate Defender’s Office, for appellant.
    Loren P. Lewis, State’s Attorney, of Benton, for the People.
   Mr. JUSTICE GEORGE J. MORAN

dehvered the opinion of the court:

The defendant, Victor Dal Santo, pled guilty to two charges of unlawful delivery of a controlled substance and was sentenced to serve from 2 to 6 years on one charge and 1 to 3 on the other, the sentences to run concurrently. The defendant’s only contention on appeal is that the former sentence is excessive and should be reduced to a minimum of 1 and a maximum of 3 years.

For 2 years prior to the commission of the offenses to which he pled guilty, defendant had sold various controHed substances. He had a prior record of two disorderly conduct convictions, a conviction for illegal purchase of alcohol, and a conviction for possession of cannabis under 25 grams in quantity.

Under the circumstances of this case, we see no substantial reason for reducing the sentence imposed by the trial court.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Woolsey, Defendant-Appellant.
    (No. 73-241;
    Fifth District
    January 6, 1975.
    Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Nicholas G. Byron, State’s Attorney, of EdwardsviHe (Bruce D. Irish of Statewide Appellate Assistance Service, and Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

dehvered the opinion of the court:

The defendant, Kenneth Woolsey, was convicted after a bench trial in the Circuit Court of Madison County of the crime of burglary, and he was sentenced to the Department of Corrections for a term of 2 to 6 years.

The only issue on appeal raised by the defendant is that he did not enter the building “without authority” when he used a key given to him by his employer to enter his place of employment. Consequently, he contends that he was not guffty of burglary.

There is little dispute as to what happened on August 23, 1972, in Alton, Illinois, to the property of Gersman and Company Roofers. The case for the prosecution consisted of. the testimony of Orville Gersman, president and majority stockholder of Gersman and Company, Detective Parker and Officer Hinders of the Alton Police Department, and a co-participant by the name of Ronald Blasingim. Some pictures of one of Gersman’s trucks taken at the time of the arrest of defendant were admitted into evidence. The defendant did not testify, and Walter Lawrence, a former employee of Gersman and Company, was the only witness for the defense.

We believe that the State proved beyond a reasonable doubt that the defendant acted without authority in entering the building, and the judgment and sentence of the Circuit Court of Madison County is to be affirmed.

. Orville- Gersman, the first witness for the prosecution, testified that the defendant, Blasingim, and one other man were employees of his film and that the defendant had a key to the warehouse-office, which would admit him to all parts of the building. On the day in question, all employees, after reporting to their assigned jobs, returned to the warehouse in the middle of the morning because of rain. Gersman “locked up” between 4:30 and 5:00 P.M. and went- home. He further testified that the workers had no authority to use the keys outside of the “normal course of business hours.” At about 1:30 A.M. the next day Gersman was notified that one of his trucks, a Chevy van, was on a country road, and after failing to locate it, he called the police. Several hours later, in response to a call, Gersman went to the Alton police station and identified the Chevy van ■ and also another truck that had been taken the same night. All of the items taken with the trucks from the warehouse were recovered.

On cross-examination, Gersman testified that defendant had authority to use the truck during business hours, but not the van. He also stated that if the workers did work past closing time, then they would have authority to enter the building to return the truck or materials. On redirect, he again stated that the defendant had no authority to enter the building after hours or take either truck.

'. Detective John Parker of the Alton Police Department testified that, after the defendant was given the “Miranda’ warnings, he told Parker that a roofer named Stamm and he met at a tavern during the afternoon of the day in question. Stamm later agreed to buy two loads of material for $250 from the defendant, and he then took a truckload of material to Stamm’s house. This meeting with Stamm took place after a coworker, Blasingim, and he did some drinking in several taverns'. After the material was unloaded; the defendant drove the truck to a country road where it was abandoned. He was picked up by Stamm and a fellow roofer named Blasingim, and the three of them returned to Alton. Defendant admitted to Parker that he had gone back to Gersman’s warehouse and was picked up by the police after driving the second truck away from the building. He also confessed that he delivered to Stamm all the stolen items that were later recovered from the Stamm residence. On cross-examination, Detective Parker stated that Stamm was not charged because he gave the original information that a crime was to be committed.

The third witness for the prosecution was Officer Binders, who set up a “stake-out” near Gersman’s warehouse. About 9:30 P.M. on August 23, 1972, a man walked across the street in front of Binders’ patrol car toward the warehouse, and 15 minutes later a truck drove out from behind the warehouse and onto the street. After a short chase, the truck was stopped and Binders arrested the driver of the truck, who was the defendant. Binders stayed with the truck until the defendant was booked and then took pictures of the truck, which were admitted into evidence at the trial. On cross-examination, Binders stated that he did not and could not see the truck actually leave the warehouse but testified that no other access to the driveway around Gersman’s building existed. He also mentioned that at the beginning of the “stake-out” he had driven around the building and saw that no trucks were on the outside.

The last witness for the State was coparticipant Blasingim. His story of the events that took place on August 23, 1972, was practically the same as the statement the defendant gave to Detective Parker. After drinking in the afternoon, Blasingim and the defendant met Stamm in a tavern, where a deal was made for the roofing material. The defendant and Blasingim went to the warehouse about 6 or 6:30 P.M. and entered with the defendant’s key. They loaded a van with material and equipment which was delivered to Stamm’s house. The two of them abandoned the van on a country road, and Stamm drove the others back to Alton. Blasingim went home and was arrested the next day on his way to work at Gersman and Company.

On cross-examination, Blasingim revealed that he had pled guilty to burglary and had received 2 years’ probation without a promise to testify. He also testified that during the month of the burglary, he and the defendant had worked after 5 P.M., but never after dark. On such occasions, they would use defendant’s key to put the truck away. On redirect examination, Blasingim stated that he never had reason to be in the warehouse after dark and had no permission to be there after dark.

. The defense offered one witness, a Walter Lawrence, who had worked for Gersman and Company for a few months prior to the incident. He Stated that he possessed a key to the warehouse, and on his return from a job, he would enter the building to load the trucks for the next day’s work. On cross-examination, Lawrence admitted that he was never authorized to enter the building when not working.

A motion for directed verdict was denied and the. defendant was found guilty.

Defendant’s reasoning is that had he been working his regular shift on the date in question, his authority to enter Gersman’s building would be unquestioned. Thus, the only factor which negated his authority was his intent to commit theft. Defendant also contends in his brief that allowing the intent, itself an essential element of the offense, to negate authority renders the “without authority” portion of the statute meaningless. He also contends that, if this is the case, any shoplifting would be burglary since the intent to commit theft would negate the otherwise authorized entrance of a store open to the public.

The law has been clearly developed against the defendant on this point. In People v. Weaver, 41 Ill.2d 434, 439, the court said:

“But authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open * * An entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat.”

This court in People ex rel. McLain v. Housewright, 9 Ill.App.3d 803, 805-06, with reference to the above statement stated that a contrary result would be “contrary to reason and ordinary human understanding.” In addition, the Houseioright case held that, since “intent to commit a theft” necessarily implies “without authority”, the latter phrase need not be included in the indictment.

The question remains whether defendant’s possession of a key gave him some greater measure of authority to enter the warehouse, which must be disproved by the State. In Annot., 93 A.L.R.2d 531, 537 (1964), it is said:

“While unlimited consent to enter is always a defense against a charge of burglary at common law or under statutes which include in the definition of the offense breaking and entering or the use of force in the entry, a consent limited as to place, time, or purpose is not a defense where entry occurs outside the limitations stated or implied.”

The evidence in the instant case does support the conclusion that defendant’s authority to enter the Gersman and Company building was limited to those occasions — both time and purpose — where necessary to further the employee’s activities. The State proved beyond a reasonable doubt that defendant acted without authority.

The sentence the defendant received is not excessive in light of the past record of the defendant. This record was brought to the trial court’s attention as the result of an extensive hearing in aggravation and mitigation.

The judgment and sentence of the Circuit Court of Madison County are affirmed.

Judgment affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


text:
    Betty Joe Rich, Plaintiff-Appellee, v. Mervin Lemoyne Rich, Defendant-Appellant.
    (Nos. 73-161, 73-288 cons.;
    Fifth District
    January 13, 1975.

      Harlan Heller, Ltd., of Mattoon, and E. H. Price, of Robinson (Harlán Heller, of counsel), for appellant.
    Robert L. Douglas, of Robinson, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is a consolidated appeal from a decree of divorce granted the plaintiff wife, Betty Joe Rich, against the husband appellant, Mervin Lemoyne Rich, and a subsequent order entered allowing the wife temporary support pending appeal by the husband and awarding the wife attorney fees to defend against the appeal. The decree, in addition to awarding the wife a divorce on grounds of extreme and repeated mental cruelty, awarded the wife $1750 in cash, periodic alimony of $100 per month, and attorney fees of $350; the subsequently entered order awarded the wife $50 per month pending appeal, and attorney fees of $500 for her representation on appeal. The husband has perfected his appeal from both the decree and order, entered in the circuit court of Crawford County.

The first contention of the appeUant to be considered is that the trial court erred in awarding appellee a divorce. The factual basis for this contention is that the “parties were living together” in the same house for a period of approximately 2 weeks after appellee filed her complaint for divorce. The wife’s complaint did not aUege the parties were living separate and apart, and the record makes no reference to the conjugal relationship of the parties during this two week period. The parties were, however, living separate and apart at the time of the trial which commenced more than 8 months after the parties had ceased their coinciding residence of the marital home. As authority for his argument that it “is against the public policy in Illinois to permit parties who are living together to maintain an action for divorce,” the appellant cites Baumgartner v. Baumgartner, 16 Ill.App.2d 286, 148 N.E.2d 327. The Baumgartner case involves an action for separate maintenance wherein it is axiomatic that the parties must be living separate and apart. Consequently, we do not believe its broad language that “[i]t is against public policy for parties to five together during the pendency of such an action” (16 Ill.App.2d 286, 292, 148 N.E.2d 327, 329), was intended to include aU actions for divorce regardless of the grounds alleged and the circumstances present. Obviously, if the complaint for divorce is grounded upon desertion, the parties must live separate and apart. Floberg v. Floberg, 358 Ill. 626, 193 N.E. 456.

However, the instant complaint did not allege desertion, but rather “extreme and repeated mental cruelty” and "adultery.” And, since condonation is an affirmative defense (Lipe v. Lipe, 327 Ill. 39, 158 N.E. 411; Simonson v. Simonson, 128 Ill.App.2d 39, 262 N.E.2d 326), which the appellant has failed to raise in' his answer to the complaint, in his petition for rehearing or on this appeal, we deem the defense of condonation waived. Although certain inferences arise from the complainant’s temporary residence in the same house with her spouse after filing for divorce, neither the argument advanced by the defendant nor the authority cited therein reveals a public policy which would require a court to vitiate appellee’^ complaint for divorce, based upon “extreme and repeated mental cruelty," in the absence of either a fatal defect in such complaint or a valid defense, e.g., condonation. On the other hand, a number of cases have allowed actions for divorce based upon “extreme and repeated cruelty” notwithstanding the continued residence of the complainant in the marital home. For example, the court in Roback v. Roback, 59 Ill.App.2d 222, 207 N.E.2d 130, when confronted with a plaintiff who filed a complaint for separate maintenance, or, in the alternative, for divorce based upon “extreme and repeated cruelty” while the parties were allegedly living together, stated:

“Had separate maintenance been the solé relief sought, the defendant’s argument might have merit, but it is no answer to the complaint for divorce based upon cruelty. [Citations.]” (59 Ill. App.2d 222, 226, 207 N.E.2d 130, 132.)

The foregoing was quoted and followed in Howison v. Howison, 128 Ill.App.2d 377, 262 N.E.2d 1. Similarly, in Collinet v. Collinet, 31 Ill.App.2d 72, 175 N.E.2d 659, the court rejected the defendant’s contention that the plaintiffs suit for divorce, which was based upon “extreme and repeated cruelty,” was barred by “plaintiff’s actions of continuing to live at home and care for the family * * (31 Ill.App.2d 72, 78, 175 N.E. 2d 659, 662.) See also Rasgaitis v. Rasgaitis, 347 Ill.App. 477, 107 N.E.2d 273.) On the basis of these authorities and in view of the appellant’s failure to show, and our lack of discovery of, any “public policy” to the contrary, we find that the trial court, which was presented with a plethora of evidence that the marriage of the parties had deteriorated to where it made the appellee’s life miserable and unendurable, was justified in granting appellee a divorce.

The appellant also contends that the court erred in awarding the plaintiff $1750 “alimony in gross” and $100 per month periodic alimony, and contends that a court cannot grant both a lump sum payment and periodic alimony under section 18 of the Divorce Act (Ill. Rev. Stat., ch. 40, par. 19) which has been interpreted to mean that a court cannot grant both periodic alimony and a lump sum payment. We agree that alimony in gross and periodic alimony cannot be granted. (Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Overton v. Overton, 6 Ill.App.3d 1086, 287 N.E.2d 47.) The decree of the court does not state that the $1750 sum to be alimony in gross, but states only that plaintiff was awarded $1750 in cash. The complaint alleged that the parties owned, stored grain, farm machinery, livestock, growing crops, four motor vehicles, a house trailer, a $600 income tax refund, a $3800 equity in their home which had been sold, and a joint bank account in excess of $2600.

The evidence shows that prior to the filing of the complaint in 1970 the parties had sold their home and received $3500 over and above the encumbrances and expenses which was placed in the joint account, which at the time of the filing of the complaint contained in excess of $2600 and in which the husband had deposited $600 received as a refund on the parties joint income tax return. The wife testified that she did not draw on the account which had been closed at the date of trial, at which time the husband had only $13 in the bank. The evidence is clear that although tire husband had a large indebtedness, he also had, or had recently unexplainedly consumed, considerably more value in assets, in addition to the joint bank account. He had an inheritance of a % interest in 112 acres of land and at the time of trial owned three old motor vehicles. His farm equipment included two operating tractors and a combine. According to the depreciation schedule filed with the parties’ 1971 Federal income tax return new equipment purchased in 1971 totaled in excess of $3000 and in 1970 in excess of $6400. The evidence also shows that the husband had livestock, stored grain and had received the proceeds of 40 acres of wheat at the time of separation.

While section 18 of the Divorce Act does not permit a lump sum payment in addition to periodic alimony, section 17 of the Act (Ill. Rev. Stat., ch. 40, par. 18) permits the equitable division of property accumulated by the parties without barring periodic alimony.

Appellant correctly asserts that relief under section 17 of the Act requires the pleading of special equities in the property sought to be partitioned or divided between the parties. We consider the allegations of ownership of the complaint meet such requirement and particularly note the $1750 awarded the wife in lump sum amounts to half of the $3500 net received from the sale of the home, which had been placed in the joint account and expended by the husband. In the cases which appellant cites, Fox v. Fox, 129 Ill.App.2d 209, 262 N.E.2d 607, and Overton v. Overton, 6 Ill.App.3d 1086, 287 N.E.2d 47, the wife had received a disproportionate share of the family assets. In Overton the wife received one-half of the husband’s assets “including even the tools of his trade.” Where property is held by one of the parties to a divorce proceeding which has been accumulated by the joint efforts of the two or by the funds of both, then such property should be divided as to such equity as exists between them. (Ylonen v. Ylonen, 2 Ill.2d 111, 117 N.E.2d 98, followed by this court in Klebba v. Klebba, 108 Ill.App.2d 32, 246 N.E.2d 681.) We do not determine from this record that the $1750 cash awarded was an allowance in lieu of alimony, or “alimony in gross” as defendant urges, but rather determine that it was an equitable division of property in which the plaintiff wife had alleged and proved a special equity; that the awarding of periodic alimony was not barred by the award of $1750 to the wife.

The parties had been married 30 years, and after the children matured, the wife for 7 years before separation had herself been employed at a salaried job and had no assets other than a small amount of personal property, and no funds to pay her attorney. In addition to his farming operation the husband had earned $6000 a year at a salaried job. Taking into consideration the net assets, earning ability of the parties, their condition of health and their needs, we consider the award of alimony of $100 per month was not an abuse of discretion, nor was the allowance of $350 attorney fees. Ylonen v. Ylonen, 2 Ill.2d 111, 117 N.E.2d 98.

We next shall consider the defendant’s appeal from the trial court’s order requiring the payment of attorneys’ fees for the appeal and temporary alimony pending the appeal. The evidence given at the hearing on plaintiff’s petition for temporary alimony differed from that given at the trial on the merits. The plaintiff testified that she was still working at the same place of employment and earning a net salary of $65 per week, that she had no assets other than personal property and had no bank accounts. She now was under a doctor’s care for a possible ulcer and heart murmur. She stated she had no funds to pay her attorney.

The defendant testified, among other things, that he had not worked regularly since the first trial, that he had disposed of most of his assets, including his interest in the farm, and was $8000 to $10,000 in debt. He stated that he had had a hernia operation and back injury since the divorce decree was granted. He stated, however, that he expected to start work the day after the hearing. He testified that he had paid his attorney $1500.

The defendant cites the case of Rabin v. Rabin, 57 Ill.App.2d 193, 206 N.E.2d 850. The Rabin case holds that the court abused its discretion in awarding temporary alimony. The court stated at page 198:

“The evidence concerning the defendant’s needs ■ and income is meager. The record shows only the defendant’s gross income and does not indicate his needs and requirements. Moreover, though there is some evidence of the defendant’s assets, there is no evidence of their value. Without more, this record does not justify the court’s exercise of its discretion in awarding temporary • alimony.”

In the instant case, the trial court had before it the complete evidence of not only the hearing on the order of temporary allowances, but also the hearing on the merits. We conclude that there is adequate competent evidence to support the trial court’s award of temporary alimony and attorney fees for representation on appeal.

The judgment of the trial court is affirmed.

CARTER and G. MORAN, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Harold Pittman et al., Defendants-Appellants.
    (Nos. 74-27, 74-77 cons.;
    Fifth District
    January 13, 1975.
    EARNS and CARTER, JJ., took no part.
    Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM:

Appellants were convicted of murder in St. Clair County in 1969 and were sentenced to death. On appeal, the supreme court vacated the death sentence and remanded the case for resentencing (People v. Pittman, 55 Ill.2d 39, 302 N.E.2d 7). Although the defendants requested sentencing hearings, none were held, and the trial court ruling that the record of the original trial contained sufficient information on which to base the sentence of 20 to 50 years’ imprisonment. This appeal was taken from the imposition of sentence.

Appellants contend and the State concedes that the denial of sentencing hearings to these defendants, as required by section 5 — 5—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005— 5 — 3), was error. We agree. We therefore reverse the judgment of the circuit court imposing sentence in this cause and remand the cause for resentencing before which appellants are to be afforded the benefit of procedures outlined in the Unified Code of Corrections.

Reversed and remanded with directions.

Mr. JUSTICE EARNS and Mr. JUSTICE CARTER took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Goodwin, Defendant-Appellant.
    (No. 73-244;
    Fifth District
    January 14, 1975.

      Robert E. Farrell and Michael Rosborough, both of State Appellate Defender’s Office, of Mt. Vernon, and Dale F. Wolff, Senior Law Student, for appellant.
    James W. Leaton, State’s Attorney, of Jonesboro, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant was indicted on a two-count indictment charging attempt murder and aggravated battery. He was tiled in a jury trial in the Circuit Court of Union County and was convicted of aggravated battery, receiving a sentence of 2 to 5 years in the penitentiary. Notice of appeal was filed and, subsequently, petitioner also filed his pro se petition for post-conviction relief. Following a denial of this petition, an appeal was also taken in that cause, and defendant’s motion to consolidate the appeals was allowed. Defendant contends; (1) that he was not proven guilty beyond a reasonable doubt; (2) that his trial counsel was incompetent; (3) that the trial court erred in denying defendant’s request to inspect the file of a State’s witness; and (4) that defendant was prejudiced by tile calling of an assistant State’s attorney as a rebuttal witness.

On May 28, 1972, the defendant and Charles Murray became involved in an argument during a bartender’s picnic at the Wilderness Retreat which is a private club and picnic grounds near Lick Creek in Union County. When Bobby Murray, Charles’ brother, attempted to stop the argument, Bobby received a severe cut extending from the back to the front of his neck. Bleeding profusely, he was immediately taken to the hospital where the wound was treated and closed with a number of stitches. After 2 days in the hospital and 6 weeks in bandages he was released from medical care. Defendant admits these facts but contends that the State’s evidence was insufficient to prove that it was he who cut Bobby.

Charles Murray testified that after defendant’s wife had called him some dirty names he got mad, but that Frank Wheaton, the owner of the club, had calmed him down. A short while later, he said, defendant came out of the clubhouse, and he too started calling him names. When defendant and Charles started towards each other, an acquaintance, Robert Fisher, grabbed Charles around the neck and pulled him back. Charles then noticed that his brother Bobby had also stepped in to break up the potential fight, but he, Charles, struggling under the hold of Fisher, was unable to see what' happened. Fisher testified that when he saw the defendant and Charles standing about 6 feet apart shouting at one another he grabbed Charles from behind, and at the same time, he could see that Bobby had stepped in between Charles and the defendant. Fisher then saw defendant’s hand go up as if he were going to slap Bobby in the head, and when the arm completed its swing blood started to run out of Bobby’s neck. Bobby immediately put his hand up to his neck and running away said, “He got me.” Bobby testified that he had heard defendant’s wife calling his brother names and had seen Wheaton break up that argument. Shortly thereafter, he said, defendant came out and he too started to curse Charles. As Fisher grabbed and held Charles, Bobby stepped in between them facing defendant. Neither he nor defendant said anything, but as Bobby started to turn away and walk off defendant grabbed him by the arm, turned him around, and that is when he felt the pain in his neck as if he had been cut by a knife. Blood immediately started to run all over him. He stated further that though he did not see a knife in defendant’s hand, nonetheless, he knew defendant had cut him because defendant was the only person behind him.

A police officer testified that later, in the evening of the same day, he was asked by the sheriff to go to defendant’s house and tell him the sheriff wanted to see him. Defendant answered the door and the officer gave him his message but did not tell him the reason why the sheriff wanted to see him. Defendant agreed to go and the officer waited while defendant dressed. As they started to leave the officer said that defendant handed him a pocketknife, saying, “I guess you want this knife.” When the officer accepted it defendant said, “I ain’t done nothing I’m ashamed of.” The sheriff testified that the knife was a pocketknife with two or three blades and about 4 inches long. He also stated that the knife had been returned to defendant when he made bond.

Defendant’s wife testified that Charles Murray had called her bad names but that she had not spoken to him. She was not present and did not see the incident involved here. Frank Wheaton testified for the defense, stating that he had heard both Charles and Bobby Murray cussing and going on. He also saw blood spurting from Bobby’s neck, but he did not see what happened, nor did he see anything in defendant’s hand. The defendant testified that when Charles Murray was calling him names Bobby stepped between them and said, “If you get on him I will have to get in too.” He denied that he had slapped or hit Bobby or that he had come into any body contact whatsoever with him. He said that he did not know anyone had been hurt until someone came into the clubhouse. and told him that Bobby was taken to the hospital. Defendant claimed that he did not have his knife with him that day. However, he admitted that when the police came to his house that evening, and even though he was not told why the sheriff wanted to see him, he did hqnd the knife to the officer, saying, “I guess you’ll need this.”

On the question of proof of guilt defendant argues that since no one saw a knife in his hand the evidence is entirely circumstantial, and. therefore, careful consideration must be given to any reasonable hypothesis of innocence. (People v. Calhoun, 4 Ill.App.3d 683.) The rule is that to support a conviction based on circumstantial evidence it is essential that the facts proved be not only consistent with defendant’s guilt, but they must also be inconsistent with any reasonable hypothesis of innocence. However, such proof need not be beyond the possibility of a doubt (People v. Branion, 47 Ill.2d 70), and the manner of the death (or injury) and the means by which it was inflicted may be inferred from the circumstances proved. (People v. Huff, 29 Ill.2d 315.) But, as stated in the latter case, this rule does not contemplate that the trier of the facts is required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt. Also, it is the jury’s province to draw inferences from the evidence and to determine the credibility of the witnesses and the weight to be given their testimony, and a jury’s verdict will not be reversed on grounds of insufficient evidence unless there is a reasonable and well-founded doubt of guilt and the verdict is found to be palpably contrary to the weight of the evidence. People v. Zuniga, 53 Ill.2d 550; People v. Irons, 20 Ill.App.3d 125.

Defendant would have us believe that the victim here was “somehow, by someone or something, accidentally injured during the excitement and grappling which occurred during efforts to prevent the impending fight,” but that it was not the defendant. To accept this argument would be to ignore common sense and the natural inferences flowing from the evidence as a whole. There was no testimony regarding any grappling by the victim, Bobby Murray. Even according to defendant’s testimony, Bobby merely stepped between the potential combatants as Charles was being pulled away by another individual. Defendant was seen swinging his arm at Bobby, and, though no one actually saw a knife in his hand, immediately following his swing blood was seen to spurt from Bobby’s neck. And Bobby testified that it was defendant, and could only have been defendant, who pulled him around at which time Bobby felt the knife cut. In addition, there is defendant’s admission that though he was not told why the police wanted to see him, nonetheless he delivered up his knife, stating he guessed that they would need it. Recognizing that it is solely within the prerogative of the jury to draw reasonable inferences from the evidence presented and to determine the credibility of the witnesses and the weight to be given to their testimony, we conclude that the facts proved were not only consistent with defendant’s guilt, but they were also inconsistent with any reasonable hypothesis of innocence. Accordingly, we find that the trial court did not err in holding that there was sufficient evidence to establish defendant’s guilt beyond a reasonable doubt.

Defendant next contends that he was denied his constitutionally guaranteed right to competent counsel. First he contends that counsel should have moved to suppress the statements he made to the police about his knife, that he should have objected to their admission in evidence, and that he should not have delved further into them on cross-examination. Such statements were spontaneous and voluntary, and, not being elicited by custodial interrogation, they were admissible even under the Miranda principles. (People v. Hicks, 44 Ill.2d 550.) And failure to move to suppress voluntary statements cannot be regarded as neglect or incompetence on the part of counsel where to have done so would have been futile. (People v. Dudley, 46 Ill.2d 305; People v. Asey, 85 Ill.App.2d 210.) Next, defendant complains that defense counsel himself introduced defendant’s knife into evidence and also elicited testimony from the officer that defendant had told him, “I ain’t done anything I’m ashamed of,” even though the State had not brought out this fact on direct examination. We do not know what prompted such actions by counsel, but it is apparent from the record that he was faced with a very difficult set of facts upon which to build a defense. It was imperative that he make use of any trial tactic that he believed might be beneficial to his client. To bring out that he was not ashamed might have been intended to persuade the jury that he had not done anything wrong. By producing the knife, showing it to be an ordinary pocketknife, it might have been hoped that the jury would have looked with favor upon such openness and frankness. Certainly producing the knife itself added little one way or the other, for its existence was already noted in the evidence, and it could be argued, as defendant does, that the failure of the police to keep the knife showed how little importance they attached to it. It is well-settled that a review of counsel’s competency does not extend to those areas involving tire exercise of judgment, discretion or trial tactics (People v. Witherspoon, 55 Ill.2d 18), and we consider such rule applicable to defendant’s above contentions. Defendant next complains of counsel’s failure to malee a closing argument. This was strictly a judgment decision based, apparently, on an assessment of the effectiveness of the State’s argument, and under the circumstances here we do not believe it in any way demonstrates incompetence. Finally, the governing rule is that before a conclusion of inadequate representation can be reached it must appear that substantial prejudice resulted therefrom without which the outcome would probably have been different. (People v. Gill, 54 Ill.2d 357; People v. Harper, 43 Ill.2d 368.) It is relatively easy to say in retrospect that a trial defense should have been conducted differently, but even if this were so in the case before us we cannot say that its outcome would probably have been different.

Defendant’s two final contentions relate to a refusal of the court to allow defense counsel to examine a doctor’s file and permitting an assistant State’s attorney to testify in rebuttal. Defendant argues that the doctor’s file should have been made available to him either under Supreme Court Rule 412 or under the principle that he is entitled to see a file which was used to refresh a witness’ recollection. The doctor did have his file with him on the stand, but it was his personal file and not a report over, which the State had possession or control, and Rule 412 is not applicable. However, it is trae that a defendant is entitled to examine a file used by a witness to refresh his recollection whether he uses it before the trial or while on the stand. But a refusal to allow such an examination constitutes error only where it is possible that some discrepancy might appear therein which in turn might conceivably affect the verdict or punishment involved. (People v. Scott, 29 Ill.2d 97.) Here, the doctor merely testified to the medical facts of the victim’s injury and the treatment given him. We find that under such circumstances the refusal to allow an examination of the file could not have affected the verdict, and the error, if any, was harmless. The assistant State’s attorney who was called to rebut Wheaton’s testimony was present at the trial but not a participant. He may have violated an order excluding witnesses, but to allow such a witness to testify is within the discretion of the trial court. (People v. Farnsley, 53 Ill.2d 537.) The witness actually supported instead of rebutting Wheaton’s testimony, and the court granted defendant’s motion to strike and instructed the jury to disregard the testimony. We find no prejudice to defendant in such procedure.

The judgment of the Circuit Court of Union County relative both to defendant’s conviction of aggravated battery and the dismissal of defendant’s post-conviction petition is affirmed.

Affirmed.

EBERSPACHER and CARTER, JJ., concur.